2 NEW Employment Legislation 4 AB 11 -Expands Leave Rights Requires employers with 50 or more employees to: Grant 14 days per year leave Reserve Peace Officers and Emergency Rescue Personnel (expanded from Volunteer Firefighters) Expanded to include time for fire, law enforcement or emergency rescue training 5 AB 60 -Driver s License for Undocumented Immigrants Undocumented immigrants will be provided driver s licenses Cannot be used for any federal purpose -will be stamped Do not use for I-9 Verification 6 2

3 AB Yet Another Protected Category RECALL Last year the California Legislature added Gender Identity and Gender Expression as protected categories. (AB 2387) This year the Legislature continues its expansion of protected categories by adding Military/ Veteran Status - Caveat that we can favormilitary when otherwise required 7 SB 288 -Time off For Crime Victims Adds protections for victims of certain crimes to attend court proceedings involving their rights Cannot discriminate or retaliate against a victim of serious crimes for taking time off to attend Victim includes person s spouse, parent, child, sibling or guardian 8 SB Sexual Harassment Amends FEHA Clarifies that sexual harassment need not be based on sexual desire Addresses Kelley v. Conco Co. case No Surprise! 9 3

4 SB 400 -Stalking Victims Get Protected Status, Too Expands job protections to victims of stalking- current law protects domestic violence and sexual assault victims Prohibits employers from terminating, discriminating, or retaliating against employees who are stalking victims Requires reasonable accommodations for those employees (e.g. transfer to new office or new extension number) in order to ensure the safety 10 SB Whistleblower Protections Expands Labor Code section Exempts from Tort Claim Protects reports of or refusal to participate in violation of local rule or regulation Protects employees who employer believes disclosed or may disclose alleged violations to: Government or law enforcement agency A person with authority over the employee Or another employee who has authority to investigate, discover or correct the violation 11 SB 700 -Paid Family Leave Expansion Expands Paid Family Leave Expands benefit to leave to care for seriously ill grandparent, grandchild, sibling or parent-in-law Not an entitlement to leave 12 4

5 NEW Public Agency Employer Legislation 13 AB Applicant Criminal History Use Relevant to PUBLIC employers Adds Section to the Labor Code Effective July 1, 2014 Prohibits inquiry or assessment of criminal convictions prior to assessment of meeting minimum qualifications Public employers should review job applications 14 AB 537 -MMBARevisions Requires that a Tentative Agreement reached must be approved or rejected by governing body within 30 days of the date first considered at a noticed public meeting Requires that if governing body adopts TA, parties jointly prepare an MOU Contractual arbitration -cannot assert procedural deficiencies to avoid arbitration (i.e. missed timelines) - defenses submitted to arbitrator Unfair practice charge based on same conduct will be held in abeyance and dismissed upon conclusion 15 5

6 AB Union Release Time Expands release time Formal meet and confer Testifying or appearing as the designated representative at PERB Testifying or appearing as designated representative in matters before personnel or merit commission Review MOU for provisions on release time 16 SB 13 (urgency) clarified: PERS Legislation Initial contribution rate for new members must be agreed to through collective bargaining to exceed 50% Employer may offer new defined contribution plan after 1/1/13, even if did not offer previously Employers are not required to change retiree health benefits vesting schedule for employees subject to schedule before 1/1/13 Adds requirement that safety retirees employed without 180 day break be re-employed to perform safety work 17 SB 39 -Forfeiture of Benefits for Felony Conviction Adds Government Code section Local public officer convicted felony arising out of, or in performance of, official duties Forfeits contractual, common law, constitutional or statutory claims against local public agency employer to retirement or pension rights or benefits Not applied to accrued rights and benefits under public retirement system 18 6

7 SB 313 -POBRA Brady List Prohibits agency from punitive action or denying promotion because name placed on Brady List (evidence of dishonesty or bias) May still take punitive action based on underlying conduct May not introduce evidence name on list in administrative appeals of discipline unless: Prove underlying act Officer found subject to punitive action based on act 19 Wage and Hour Laws 20 SB 7 -Prevailing Wages for Charter Cities Response to State Buildings & Construction Trade Council of Cal. v. City of Vista(2012) 54 Cal.4th 547, holding that locally funded projects not subject to state prevailing wage laws. Adds Section 1782 to Labor Code: Payment of prevailing wages on local charter city projects in order to qualify for state funding on future public works. 21 7

8 AB 10 -Minimum Wage Increases California minimum wage will be raised in two steps: STEP 1 As of July 1, 2014, the min. wage will be increased to not less than $9.00 per hour. STEP 2 As of January 1, 2016, the min. wage will be increased to not less than $10.00 per hour. 22 AB Overtime for Domestic Workers Enacts the Domestic Workers Bill of Rights January 1, 2014 Law requires that domestic workers who spend significant time caring for children, elderly, and disabled earn overtime: For hours over 9 in a day For hours over 45 in a week 23 AB 263 / SB 666 -Protections for Use of Labor Code Rights These bills amend Labor Code section 98.6 Written and oral complaints about wages are protected Employee is not required to exhaust remedies before lawsuit Rebuttable presumption that adverse action within 90 days of complaint is retaliation Clarification re unlawful immigration-related practices such as refusing to honor docs that appear genuine 24 8

9 SB 390 -Criminal Penalty Added for Wage Withholding Existing law only makes it a crime for employers to fail to make agreed-upon payments for health and welfare funds, pension funds, or benefit plans Adds criminal designation for failure to remit anywithholding required by local, state, or fed law 25 SB 435 -Paid Heat Breaks Current OSHA regulation requires to allow no less than five minutes at a time to protect from overheating New law amends Labor Code section to require one hour of premium pay for failure to provide recovery period 26 AB 442 Liquidated Damages for Wage Violations Current law authorizes the Labor Commissioner to investigate and enforce payment of wages by employers This bill amends Labor Code sections and to subject employers to liquidated damages in addition to criminal and civil penalties 27 9

12 PAGAPenalties Cannot Be Aggregated For Removal Urbino v. Orkin Servs. (9 th Cir. 2013) 726 F.2d Diversity Jurisdiction required to remove a case to federal court requires at least $75,000 in controversy. Plaintiff claimed that as a representative of 800 other employees the wage violations amounted to approximately $400,000. His individual claims were worth $11,000. Court held that PAGA claims could not be aggregated. 34 May Pursue Class Action Under FLSA& State Law Busk v. Integrity Staffing Sol. (9 th Cir. 2013) 713 F.3d 525. Plaintiffs brought class action in federal forum for FLSA violations and for state law wage violations. Court held that the Federal Opt-In Class Action procedure did not preclude the state Opt-Out Class Action procedure. 35 Preponderance of Evidence for Federal Removal Rodriguez v. AT&T(9 th Cir. 2013) 2013 U.S. App. LEXIS Wage-and-hour class action filed in State Court. AT&T removed the case to federal court under the Class Action Fairness Act (CAFA), which requires at least $5 million in controversy. Plaintiff purported to waive any claim for more than $5 million for class claims. Preponderance of the evidence used to establish value of claims

13 Harassment / Retaliation 37 McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283 Female employee files lawsuit against employer for sexual harassment and retaliation As to sexual harassment claim, Court held that evidence was insufficient to state a claim based on hostile work environment Comments about women s bodies made on at most 9 and possibly as few as 5 occasions Comments involved discussion of other women s bodies outside their presence Employee did not claim that any sexual comment or conduct was directed at her 38 McCoy v. Pacific Maritime Assn. (Cont d) On retaliation claim, Court held there was sufficient evidence to support verdict in employee s favor Management revealed details of a confidential settlement agreement to co-workers upon whom employee relied for training necessary to advance, who then harassed her. Employee s continued isolation and ostracism established retaliation claim. Evidence of retaliation against two other employees was improperly excluded; trial court should have first determined whether experience of other employees was sufficiently similar to that of the plaintiff

14 Hatai v. Department of Transportation (2013) 214 Cal.App.4th 1287 Employee sues employer and supervisor claiming discrimination based on his Asian ancestry Employee could not prove discrimination by showing that supervisor discriminated against any employee not of Arab descent But employee allowed to present me too evidence of other employees of Asian descent subjected to similar discrimination Admissibility of me too evidence was based on manner in which discrimination claim was originally pled 40 McGrory v. Applied Signal Technology (2013) 212 Cal.App.4th 1510 At-will supervisory employee McGrory is accused of discriminating against subordinate based on her gender and sexual orientation Employer retains outside investigator, who determines McGrory did not engage in discrimination, but finds McGrory had been uncooperative and untruthful during investigation, and McGrory had violated sexual harassment policy by making jokes based on sex and gender 41 McGrory v. Applied Signal Technology (Cont d) Employer terminates McGrory not based on original complaint, but because of violation of harassment policy, conduct during investigation and potential liability created by his behavior McGrory sues, claiming pretext based on purported investigator anti-male bias and because employer offered different reasons for his termination 42 14

15 McGrory v. Applied Signal Technology (Cont d) Judgment in favor of employer: Anti-male discrimination claim unsupported by any evidence Discriminatory motive could not be inferred simply because employer had different reasons for termination Public policy was not violated by termination based on McGrory s conduct during investigation Public policy does not protect deceptive activity during internal investigation 43 Vance v. Ball State University (2013) 133 S.Ct Vance, who worked as a catering assistant, sued her employer, the University, alleging that a fellow employee Davis, who worked as a catering specialist, created a racially hostile work environment in violation of Title VII The issue was whether Davis was Vance s supervisor, in which case the University could be held vicariously liable for Davis alleged racial harassment. 44 Vance v. Ball State University (Cont d) Supreme Court held that an employee is a supervisor for purposes of vicarious liability under Title VII only if she is empowered by the employer to take tangible employment actions against the victim Tangible employment actions = power to hire, fire, demote, promote, transfer, discipline 45 15

16 Disability Discrimination and Medical Leaves 46 California Disability & Pregnancy Disability Regulations Expanded Definition of Reasonable Accommodation Expanded Definition of Pregnancy-Related Conditions Expanded Definition of Healthcare Provider Four-Month Leave Period and Calculation of Use of Intermittent Leave Clarification of Rights Related to "Pregnancy" vs. "Perceived Pregnancy Notice and Medical Certification Reinstatement Rights 47 Lawler v. Montblanc North America, LLC (9th Cir. 2013) 704 F.3d 1235 Lawler filed suit against her employer and its president and CEO for disability discrimination, retaliation, and harassment under FEHA. The District Court granted summary judgment for the defendants. The Ninth Circuit affirmed: Failed to establish a prima facie case of disability discrimination because she was not competently performing her position. Inability to perform the essential functions of her position constituted a legitimate reason for her termination and Lawler failed to provide specific and substantial evidence that this reason was pretextual. Single incident of gruff, abrupt, and intimidating behavior by the employer s CEO was not sufficiently severe to constitute a hostile working environment

17 White v. City of Pasadena (9th Cir. 2012) 671 F.3d 918 Plaintiff White, a City of Pasadena Police Officer, filed three lawsuits against the city over a period of three years: The first (White I) alleged disability discrimination because the city fired her because she had associated with a known drug dealer. Was reinstated on statute of limitations grounds but, on appeal, the lawsuit was decided in favor of the city. Before White I went to trial, White was again fired after an alleged suicide attempt about which the city determined she had made false statements to law enforcement. She pursued an administrative appeal of her second firing (White II), with the arbitrator finding in her favor, but the city manager terminated her anyway. The Court of Appeal found in favor of the City, and White did not seek further review. While White I was on appeal and the proceedings in White II were still pending, White filed another lawsuit against the City (White III), alleging a pattern of discrimination and harassment by the city because of her disability. 49 White v. City of Pasadena (9th Cir. 2012) 671 F.3d 918 (Cont d) Under 28 U.S.C. section 1738, it was obligated to apply California s principles of issue and claim preclusion, and in doing so, it found that White I precluded White from arguing that the city had harassed or discriminated against her based on perceived disabilities and White II precluded her from arguing that her termination was a pretext for retaliation. 50 Furtado v. State Personnel Board (2013) 212 Cal.App.4th 729 California State Personnel Board s decision that the Department had reasonably determined that Furtado was unable to perform the essential functions of his correctional lieutenant position even with reasonable accommodation because of his inability to use a baton, which was required by all correctional lieutenants. The department acted reasonably in demoting Furtado to an available non-peace officer position for which he was qualified and could perform the essential duties

18 Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962 Evidence supported the trial court s finding that the strenuous physical listed by the SFPD on the Sworn Members Essential Job Functions list were essential functions -even for administrative positions -because SFPD had a legitimate need to be able to deploy administrative officers in the event of emergencies and other mass mobilizations. 52 Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635 No violations of the Michelle Maykin Memorial Donation Protection Act ( DPA ) because it was not in existence at the time of Rope s termination and that the DPA cannot be applied retroactively. A mere request or even repeated requests for an accommodation, without more, constitutes a protected activity sufficient to support a claim for retaliation in violation of FEHA. Claims for direct disability discrimination under FEHA fail because Rope had not established that he is himself physically disabled, but rather claimed that he anticipated becoming disabled for some time after the organ donation which is insufficient. 53 Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635 (Cont d) Claims for perceived disability discrimination failed because Rope was not perceived as or treated by Auto-Chloras having, or having had, a physical disability or as having, or having had, a disease, disorder, condition, or health impairment that might become a physical disability. Trial court erred in sustaining the demurrer to the association-based disability discrimination claim because Rope had plead facts sufficient to support the claim based on his relationship or association with his physically disabled sister. Rope similarly plead facts sufficient to support a claim that Auto-Chlor violated FEHA by failing to take the necessary steps to provide an environment free from discrimination, because it is dependent on a viable claim for discrimination and Rope s FEHA claim for associational disability discrimination survived

19 Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466 Employee must demonstrate that unlawful discrimination was a substantial motivating factorin a challenged adverse employment action. Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision. 55 Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331 Pregnancy Disability Leave Law augments, and does not replace or supplant, the other requirements under FEHA, specifically the requirement that employers engage in the interactive process and provide reasonable accommodations of a disability as long as the accommodation does not create an undue hardship. A finite leave of greater than four months may be a reasonable accommodation for a known disability under the FEHA. The Court of Appeal reversed the trial court s dismissal. 56 Smith v. Clark County School District (9th Cir. 2013) 727 F.3d 95 Smith was a qualified individual under the ADA. Smith s claims for FMLAleave, private insurance benefits, and PERSdisability retirement did not inherently conflict with her ADA claim because they did not account for her ability to work with reasonable accommodation. Smith had offered sufficient explanations for her inconsistent statements in her prior benefit applications

20 Olofsson v. Mission Linen Supply (2012) 211 Cal.App.4th 1236 Employer only required to respond to employee s CFRAleave within 10 days, not approve it. Defendant did not misrepresent by deed that plaintiff s leave application was approved and did not remain silent when it had a duty to speak. 58 Religious Discrimination, Harassment, and Retaliation in the Workplace 59 Claims of Harassment and Discrimination Based on Religion Increase in DFEH and EEOC claims and litigation. o Most cases involve requests for religious accommodation, where demands of religion conflict with employer policies on scheduling, dress, grooming, duties and other matters

21 Federal Law Title VII forbids discrimination based on race, color, gender, national origin, and religion, circularly defined to include all aspects of religious belief, observance, and practice. Employers must reasonably accommodate sincere religious practices, unless doing so would create undue hardship. o Duty reflects basic discrimination law. 61 AB 1964 Religious Discrimination Amendments to the FEHA Workplace Religious Freedom Act ( WRFA ) Effective January 1, 2013, FEHA was amended to: Clarify that an employer s obligation to accommodate employees religious creed, beliefs or observances includes accommodating religious dress and grooming practices, as broadly defined. (Govt. Code Sec 12926, subd. (p).) Govt. Code Sec (p): "Religious creed," "religion," "religious observance," "religious belief," and "creed" include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. "Religious dress practice" shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. "Religious grooming practice" shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed. 62 WRFA...continued Clarify that the standard for determining whether a religious accommodation poses an undue hardship is the same standard used for evaluating disability accommodations. Govt. Code Sec (1): Employer cannot discriminate because of a conflict between the person's religious belief or observance and any employment requirement, unless the employer demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with his or her religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (t) of Section 12926, on the conduct of the business of the employer. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (p) of Section

22 WRFA...continued Govt. Code Sec 12926(t): "Undue hardship" means an action requiring significant difficulty or expense, when considered in light of the following factors: (1) The nature and cost of the accommodation needed. (2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility. (3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities. (4) The type of operations, including the composition, structure, and functions of the workforce of the entity. (5) The geographic separateness, administrative, or fiscal relationship of the facility or facilities. 64 WRFA...continued State expressly that an accommodation is not reasonable if it requires segregation of an employee from other employees or the general public. Govt. Code Sec (l)(2): An accommodation of an individual's religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public. Provide that a religious accommodation is not required if it violates the civil rights of another. Govt. Code Sec 19240(l)(3). 65 Burdens of Proof Two-part burden-shifting test for religious accommodation claims. Employee must show: o Sincerely held religious belief and practice conflicts with employment duty; and o Employer was informed of the belief and theconflict and the belief conflicted with an employment requirement; or o Employer took adverse action against employee because of the conflict. Employer must then show: o One or more elements of employee s prima facie case not true; or o Employer offered a reasonable accommodation; or o Employer engaged in good faith to explore accommodation of religious practices and could not reasonably accommodate without undue hardship

23 What is a Religion Title VII: Moral or ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views. 29 C.F.R FEHA: Any traditionally recognized religion as well as beliefs, observations, or practices that an individual sincerely holds and that occupy in the individual s life a place of importance parallel to that of traditionally recognized religions. Cal. Code Regs., tit. 2, Some non-traditional faiths can qualify: o World Church of the Creator (preaching white supremacy) Peterson v. Wilmur Communications, Inc. (E.D. Wis. 2002) 205 F. Supp. 2d o Wiccan (assuming Wiccan qualifies as Title VII religion) Benz v. Rogers Memorial Hosp., Inc. (E.D. Wis. 2006) 2006 WL While other well-established belief systems may not qualify: o Veganism (veganism is personal philosophy, not religious creed, as it does not address purpose of life, derive from ultimate faith, or bear external signs of religious organization) Friedman v. SCPMG (2002) 102 Cal.App.4th What is a Sincere Belief [E]mployee does not cease to be discriminated against because he temporarily gives up his religious practice and submits to the employment policy. EEOC v. Townley Engineering & Mfg. Co. (9th Cir.1998) 859 F.2d610. Catholic was sincere about attending Sunday mass even if she could not identify all of the elements of a Catholic mass. Pozo v. J & J Hotel Co WL Religious group need not accept belief espoused by the employee. Thomas v. Review Bd. Of Indiana Employment Sec. Division (1981) 450 U.S Employers can inquire into sincerity before deciding whether to grant religious accommodation: Employer could see if employee really attended synagogue services she cited as reason to resist schedule changebecause her conduct led employer to doubt this. Bind v. City of New York (S.D.N.Y. 2011) U.S. Dist. LEXIS EEOC Compliance Manual: If accommodation request gives insufficient information, employer with good-faith doubt can make limited inquiry into whether the request reflects a religious belief or practice that requires accommodation. Postal clerk fired because she refused to process Selective Service System registration forms, contending that she was a conscientious objector based on her Quaker upbringing, even though she was no longer a member of any Quaker Society Meeting. Employee s continuing belief in the Quaker religion s Peace Testimony and her willingness to jeopardize her job entitled her to claim that she had been discriminated against on the basis of a bona fide religious belief and for the court to not question the sincerity of her belief. McGinnis v. United States Postal Service(N.D. Cal. 1980) 512 F.Supp

24 Reasonable Accommodations See Requirements of WRFA: undue hardship is a significant difficulty or expense when considered under the Government Code section 12926(t) factors. Examples of Reasonable Accommodation for Religious Observances Conflicting with Work: o observing Sabbath; o praying or other religious activity during work hours; o missing work to mourn for deceased relative; o refusing to submit to medical exam; o refusing to join union or pay union dues; o adopting certain hair style or beard; o wearing certain clothing or head coverings; and o displaying certain jewelry, objects, or tattoos. 70 Reasonable Accommodation Notice Required Employee is required to tell employer that a work requirement is violating their religious beliefs. Notice can be minimal. Once employee establishes that the employer is aware of the employee s sincere religious belief and that that belief or observance conflicts with an employment requirement as under Title VII, the employer must initiate goodfaith efforts to accommodate the belief or observance. California Fair Employment and Housing Commission v. Gemini Aluminum Corp. (2003)122 Cal.App.4th Employee objecting to drug screening in form of saliva test instead of blood or hair or urine test (based on tenet of Santeria religion) gave sufficient notice of religious conflict and proposed accommodation. EEOCv. GKN Driveline N. Am.(2010) U.S. Dist. LEXIS Reasonable Accommodation Once employee establishes that the employer is aware of the employee s sincere religious belief and that that belief or observance conflicts with an employment requirement as under Title VII, the employer must initiate good-faith efforts to accommodate the belief or observance. California Fair Employment and Housing Commission v. Gemini Aluminum Corp.(2003) 122 Cal.App.4th It is well settled an individual s religious beliefs must be accommodated even whereit meansmaking an exceptiontoarulewhichisreasonablyappliedto other individuals with different beliefs. Best v. California Apprenticeship Council (1984) 161 Cal.App.3d 626. Where the negotiations do not produce a proposal by the employer that would eliminate the religious conflict, the employer must either accept the employee s proposal or demonstrate that it would cause undue hardship were it to do so. EEOCv.TownleyEng g& Mfg.Co.(9thCir. 1988)859F.2d610,625; Opuku-Boateng v.state ofcal.(9th Cir.1996) 95 F.3d1461, Employee not entitled to accommodation of their choice

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